A credit card issued to a public servant under a program where the card is issued at
the direction and under the control of the State of Texas for state purposes may not be
used for personal expenditures or any other type of expenditure not reimbursable as a
state business expense under state law. (Emphasis added.)

Several requestors have asked that we reconsider this opinion, at least insofar as it
limits the use of a state-issued credit card (a "state card") to state business
expenses that are reimbursable. A recurring example offered by requestors occurs when a
public servant traveling on state business must pay a hotel room rate that exceeds the
maximum per diem for lodging under state law. The question raised is whether the public
servant is prohibited from using a state card to pay any portion of the hotel bill that
exceeds the reimbursable per diem rate.

In responding to this advisory opinion request, it may first be useful to restate the
purpose and effect of an advisory opinion issued by the Ethics Commission. Our opinions do
not make a specified action illegal. The effect of an advisory opinion is to provide those
who reasonably rely on the opinion with a defense in a criminal prosecution or an action
to impose a civil remedy.1 Accordingly,
we are cautious in expressing an opinion that shields a person from an allegation that a
law we are authorized to interpret has been violated.

The key conclusion and advice in Ethics Advisory Opinion No. 95 was that a state
employee is prohibited from using a state card for a personal expense. We remain
convinced that a public servant's use of a state card for any type of expense, however
characterized, other than a state business expense is a misapplication of state property
and may violate section 39.01 of the Penal Code. See Ethics Advisory Opinion No. 95
at 3.

We agree, however, that the test stated in Ethics Advisory Opinion No. 95 to
distinguish a permissible state business use from an impermissible use should be modified.
The advice in our earlier opinion was based on our understanding of the contract between
the State and the company that issues charge or credit cards ("Card Company").
That contract establishes and governs the relationship between the State, the Card
Company, and public employees who receive a state card. The recitation of the contract
provided by the requestor in connection with Ethics Advisory Opinion No. 95 included the
following language:

The State agrees to instruct its Corporate Cardmembers that individual accounts
established under this Agreement are to be used for official State business expenses that
are reimbursable in accordance with applicable State law. (Emphasis added.)

This language was the source of the reimbursability standard stated in
Ethics Advisory
Opinion No. 95 to distinguish a use of a state card that may be a misapplication of state
property from a use that clearly is not. Upon receiving further information regarding the
contract with the Card Company, it is apparent that, while the card must be used for a
state business expense, reimbursability is not necessarily the deciding factor in
determining whether an expense is permissible.

We are advised by the General Services Commission that the contract with the Card Company permits state employees to use a state card "for business expenses."2
This information is consistent with rules adopted by the General
Services Commission concerning use of a state card. Those rules provide:

(a) Charge accounts and cards are provided for official business use. Accounts
may be established for individual state employees, the participating agency, or both.

. . . .

(e) By accepting a charge card, the employee accepts the responsibility for paying all
charges timely and agrees that the charge card is intended for state business use.
Payment of charges on individual cards is the sole responsibility of the individual. The
state shall not be responsible for the charges, regardless of the type of charge, nor
shall the state be liable for nonpayment by the employee.

1 T.A.C. § 125.9 (emphasis added). Under article 601b, V.T.C.S., the General Services Commission has the authority and responsibility to regulate contracts with credit card companies that provide services to state agencies. V.T.C.S. art. 601b, § 14.01. In rules adopted to implement that statute, the General Services Commission has stated that a state card is to be used for official state business. The General Services Commission and the Comptroller of Public Accounts share the responsibility of establishing and enforcing regulations that govern use of state cards issued to a public servant.3

We defer to those state agencies that have both the authority and expertise to
establish detailed, specific guidelines that may be needed to assist a public servant who
must decide whether a specific expense is a permissible "official business use"
or a "state business use." Our jurisdiction to issue advisory opinions extends
only to specified statutes.4 In the example offered by the requestorsa public
servant using a state card to pay a hotel room rate that exceeds the maximum per diem
ratewe can advise that this use is not a misapplication of stateproperty if
authorized by rules, policies, and practices adopted by the General Services Commission
and any other agencies authorized to regulate use of the state card. Ethics Advisory
Opinion No. 95 is overruled to the extent it conflicts with this opinion.

SUMMARY

A public servant's use of a state-issued credit card for any type of expense other than
a state business expense is a misapplication of state property and may violate section
39.01 of the Penal Code. It is not a misapplication of state property to use a
state-issued credit card for a state business expense in accordance with rules established
by agencies authorized to control the card's use.

1Section 1.30(a) of article 6252-9d.1,
V.T.C.S., provides: It is
a defense to prosecution or to imposition of a civil penalty that the person reasonably
relied on a written advisory opinion of the commission relating to the provision of the
law the person is alleged to have violated or relating to a fact situation that is
substantially similar to the fact situation in which the person is involved.

2Letter from Judith Porras, General Counsel for the General Services Commission, to Andrew
Martin, General Counsel for the Texas Ethics Commission (March 23, 1993) (on file with the
Ethics Commission).

3Title 1, section
125.1(e), of the Texas Administrative Code provides: These rules are intended to be
consistent with the Travel Allowance Guide published by the Comptroller of Public
Accounts.

4The Ethics Commission has authority to interpret six
statutes: (1) chapter 305 of the Government Code (lobby); (2) chapter 302 of the
Government Code (speaker's race); (3) title 15 of the Election Code (campaign finance);
(4) article 6252-9b, V.T.C.S. (financial disclosure and standards of conduct); (5) chapter
36 of the Penal Code (bribery); and (6) chapter 39 of the Penal Code (abuse of office).
Ethics Advisory Opinion No. 95 concerned the application of chapter 39 of the Penal Code
to the use of a state card.